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Eyewitness ID reliability case heads to the Supreme Court

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On May 31, the U.S. Supreme Court agreed to hear Barion Perry vs. the State of New Hampshire, a case regarding the reliability of eyewitness identification. The Appellate Defender Program, a joint operation of the New Hampshire Public Defender and the University of New Hampshire School of Law, filed the petition to address the conflict between state and federal courts on the question of eyewitness identification.

Perry was convicted of stealing a car in Nashua. A witness initially identified Perry while police were detaining him, but later admitted she did not recognize him, and was unable to pick him out of a police line-up nor did she identify him at the trial. The U.S. Supreme Court has previously said that trial courts should review the reliability of all identifications that arise from suggestive circumstances. The Court, however, has never decided if the rule applies even when the police did not orchestrate the identification. State courts leave the matter of reliability to the jury if there was no police involvement in the identification. Federal courts review the reliability of identification evidence without regard to police involvement.

The question before the Court in the Perry case is whether a trial court should review the reliability of all eyewitness identifications or only those where the police may have done something wrong. The argument made by the Appellate Defender Program is that all unreliable eyewitness identifications create a great risk that an innocent defendant will be convicted and that this violates the defendant’s due process rights.

“This is an issue which affects criminal trials regularly,” said Richard Guerriero, of the New Hampshire Appellate Defender Program. “Eyewitness identification evidence is used every day across the country. The due process principles regulating the admission of such evidence should be clear and consistent. At present they are not.”

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